Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)

Dear Paz and other helpful members,

after I talked to my AUSA and he told me that according to the litigation report the FBI has completed my name check which is now waiting to be sent in a batch (the results are not sent individually but the FBI evidently waits till they have collected some) to the UCSIS for review and adjudication.
Now he left me with the option of remanding the case to the UCSIS for adjudication or extending the deadline for my WoM for another 60 days. I opted for the last and he duly filed an unopposed motion to this extent (according to pacer).
I had the feeling the case would better remain under the jurisdiction of the Federal Court instead of being remanded to the USCIS, especially after the positive experiences I had with the AUSA. My question though is how do I get the filing fee back? I put this request exclusively in my prayer.
Provided the judge agrees to the motion to extend the timeline how and when would be a point to try to collect the fee. I am sure that it has to be a court ruling. If the adjudication process by the USCIS is completed I assume the AUSA can file for a dismissal (which would of course be unopposed). Would that be the point under which the judge could dismiss the case still honring this part of my prayer?
Also does anybody have an idea of the timeline (I can hear the laughter) between completion of the FBI name check and the next action (2nd fingerprinter, new interview or naturalization) of the USCIS?

Thanks so much!

Best

D.

You can get your costs reimbursed only if you are a prevailing party. If the lawsuit is ultimately dismissed with a joint stipulation (because your petition is adjudicated), it is usually agreed that each party bears its own costs and attorney's fees (if Plaintiff had one). By not opposing a motion to extend and later a motion to dismiss, you certainly will not become a "prevailing party".

I posted a while ago an Opinion&order from a case which was dealing exactly with such situations, expalining in detail the criteria for "prevailing party" in such lawsuits.

I never found out when my NC was completed. But according to some accounts, the 2nd FP request is issued only after the NC is completed, my application was approved approx. 2 weeks after the 2nd FP.
 
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Did they video-record this interview? How many interviewing officers were there?

Second interview amazed me as well. Specially when my back ground have already cleared last November and Judge has already ordered CIS to resolve issue in 120 days. I don’t even have a freaking speeding ticket under my belt and absolutely no skeletons in my closets. Married to a US Citizen for 9 years with kids, work my butt off and pay tons of taxes. I passed first interview over 3 years ago and have been finger printed twice by now since finger prints expire every 15 months. Now I am due for figure prints again.
I believe I was a “chosen one” for the second interview because I am from Pakistan and a Muslim. So more than half of their questions were regarding my activities as a Muslim for example,
• Do you belong to Taliban or have any ties with them? ---Hell NO
• Do you belong to any organization or club? ---Yes Red Cross because I donate blood some times
• What mosque do you belong to? --Mam Mosques are not like churches where you have to belong, any body can go to any mosque no questions asked so I go to any mosque that is closer to me
• Why do you go to that mosque? -- Because that mosque have several activities that me, my wife and kids enjoy for example every Friday Joint potluck with a church across from our mosque
• What do you guys talk about when you meet with your friends in Mosque? --We like to eat so we talk about who’s house we are going to meet up and who is cooking
• How did you meet your wife? --In my class
• Application says you have 3 kids but you are saying you have 4 kids – Yes mam I filed application 5 years ago and I passed N400 interview over 3 years ago so we just had another baby 2 months ago
• Did you bring her birth certificate? –No mam you did not ask for it
• What religion is your wife? --Now she is Muslim
• Did you convert her? --No mam she did it on her own
• R your kids converted? --Kids don’t have to be converted mam they just follow their parents foot steps
• How many times you have been to Pakistan every since you came here 16 years ago? -- Two times
• Did you go to any camps in Pakistan – No mam
In the end they told me they will contact me if they have any more questions. Haven’t heard back yet been two weeks now. I might call 800 number again tomorrow to see if they can schedule me for 3rd fingered prints because mine expired in last December.

Did they video-record this interview? How many interviewing officers were there?
 
You can get your costs reimbursed only if you are a prevailing party. If the lawsuit is ultimately dismissed with a joint stipulation (because your petition is adjudicated), it is usually agreed that each party bears its own costs and attorney's fees (if Plaintiff had one). By not opposing a motion to extend and later a motion to dismiss, you certainly will not become a "prevailing party".

I posted a while ago an Opinion&order from a case which was dealing exactly with such situations, expalining in detail the criteria for "prevailing party" in such lawsuits.

I never found out when my NC was completed. But according to some accounts, the 2nd FP request is issued only after the NC is completed, my application was approved approx. 2 weeks after the 2nd FP.

Dear Paz,

I tried to look through the old postings. In my case with the judge who is in all likelihood going to grant the 60 day extension requested by the AUSA chances to recover the costs seem evidently pretty slim. The motion of the AUSA is already in the PACER.
Can I pro forma later on oppose the motion to dismiss just to be the prevailing party?

Thanks for your help,\

Best

D.
 
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I won the case against USCIS but whats next

Hello people,

After some fight with USCIS I won the case but whats next, do I have to send the decsion to the defendents or court wil take care of it, whats the next step

View attachment 15773
 
I do not understand your reply to my post. What is the connection between 800 number and reply that another member of this forum is waiting from AUSA after filing the case that I gave an answer?

Look at recently concluded case on pacer 2:06-cv-13219-AJT-VMM for an opposition to motion to dismiss for I-485
 
Dear Paz,

I tried to look through the old postings. In my case with the judge who is in all likelihood going to grant the 60 day extension requested by the AUSA chances to recover the costs seem evidently pretty slim. The motion of the AUSA is already in the PACER.
Can I pro forma later on oppose the motion to dismiss just to be the prevailing party?

Thanks for your help,\

Best

D.

Just opposing a motion doesn't make you a prevailing party. The judge has to rule on that motion and if denies it (i.e., your opposition prevails), you become a prevailing party. I don't see what can you oppose in the motion to dismiss after USCIS agrees to adjudicate your application. But I believe this whole discussion is premature, let's wait and see what will be the actual scenario and we can revisit this issue when you are already there.
 
Hello people,

After some fight with USCIS I won the case but whats next, do I have to send the decsion to the defendents or court wil take care of it, whats the next step

Congratulations! Excellent job, fighting this till the ned all by yourself. It created one more good precedent for others who are requesting a specific timeline with the remand order.

I believe that the court sends a copy of the order to both parties, but I would check with AUSA. She certainly can check PACER for the order and forward that decision to her clients.

I believe that you qualify as "prevailing party" and as such you would be entitled to recover at least your filing fee and mailing expenses (if you have receipts). I would also try to recover the PACER expenses (you can provide as proof your Credit Card statements). But if you are sick and tired with them and willing to absorb these expenses, you should just relax and enjoy your victory and wait till you get the decision from USCIS (hopefully the notification of approval and the invitation for the oath ceremony).
 
Hello people,

After some fight with USCIS I won the case but whats next, do I have to send the decsion to the defendents or court wil take care of it, whats the next step

View attachment 15773

Congratulations, ournyla for a job very well done. Fighting your own till the end, that is something. People like you who can make a difference and forces CIS to change their attitude.
 
What does Id. mean that I see in court papers.
For example "Id. at 931"
Thanks

Merriam-Webster's Dictionary of Law - Cite This Source
Main Entry: idem
Pronunciation: 'I-d&m, 'E-dem
Function: pron
Etymology: Latin, same
: something previously mentioned : the same authority —used in citations to cases and other works to refer to an immediately preceding reference —compare INFRA, SUPRA
NOTE: Idem is usually used in the form of its abbreviation id. <In Bally, the plaintiff also claimed…403 Mass. at 720-21. The [court] denied the claim…Id. at 721 —Railroad T. Gerwatowski>

Merriam-Webster's Dictionary of Law, © 1996 Merriam-Webster, Inc.
 
Did they video-record this interview? How many interviewing officers were there?

Yes it was Video tapped by a Sony camera (DVD one) :) and lasted 1 hour. There were two officers. One was monitoring the camera and made copies of my green card and stuff and other was questioning.
 
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I've filed the return receipt & certificate of service with the court. Should I send a copy to US Attoney's office and every defendants? Thanks

"12. File the return receipt with the court, and send a copy to the US atty office."

In my opinion - US Atty only.

I am about to file 1447b in San Jose, probably this week. The info I have for the local USCIS ofiice is the following:

Francis D. Siciliano
Officer-In-Charge, USCIS, San Jose Sub Office,
1887 Monterey Road, San Jose, CA 95112

Unfortunately, beginning Aug. 23, 2006 USCIS has stopped posting the names of local directors on their website. I could not get it from the USCIS lady over the phone. Does anybody know if the same guy is still in charge or the name of current Officer-In-Charge in San Jose?

Many thanks!
Good luck to you all!
snorlax
 
where can I find the details of the previous cases?

I'm writing an opposition to the AUSA's motion to dismiss or remand the case. For this purpose, I'd like to quote some known successful cases, especially those in which the district court remanded the case with specific time limits. From an online source, I learned that the following cases are such examples:

(1) Aslam v. USCIS, No. CV 05-985 GAF (C.D. Calif. June 6, 2005) (ordering the Government to complete Plaintiff’s name check in 30 days)

(2) Al Saidi v. Jenifer, (ordering Defendants to adjudicate Plaintiff’s N-400 application in 80 days from the date of the order)

(3) Al-Kudsi v. Gonzales, (ordering Defendant Alberto Gonzales to instruct FBI to complete the name check of the Plaintiff in 90 days from the date of the order and deliver it to the District Director of USCIS)

(4) Mohamed v. Frazier (ordered USCIS to resolve Plaintiff’s N-400 application within 30 days from the date of the order)

(5) Elshorbagi v. Melville, (“Upon remand, defendants are ORDERED to complete any further investigation deemed necessary by defendants in order to satisfy the background check requirements of the naturalization process within NINETY (90) DAYS from the date of this order”)

(6) Khelifa v. Chertoff, (instructing USCIS to promptly determine Plaintiff’s N-400 application in 90 days from the date of the order).

My question is: Where can I get the rulings in these cases? I'd like to learn some details before I can be confident enough to confront the AUSA in the court.

Z.

Hello zl2007 and welcome to this forum. Although I'm not Publicus - he is not active anymore on this forum - but we all owe him a big "Thank you" and have the moral obligation to try to help the newcomers on this journey, which means sueing the federal government.

First of all, don't let AUSA to intimidate you. Seems to me that he is not one of the nice persons who have compassion and try to help. But you should respect him and yourself, so stay calm and professional and of course, firm on your ground. The law is on your side and with perseverence, preparation and a little luck you will prevail.

Be assured that AUSA will file something by the deadline. It is very rare (although not unheard) that AUSA files nothing by the deadline.
This can be:
1. the Answer to your complaint (in that case you don't have to file any document, the next move will come from the judge)
2. Another motion to extend. Because there was already one, the judge will be less eager to grant it, although it will greatly depend on what cause will be listed for the extension
3. AUSA will file a Motion to dismiss or remand

In this case they invariantly argue that the name check is part of the examination, which is not a single event, but rather a process, so the 120 days clock from 1447(b) didn't even start (this is based on Danilov v. Aguirre, an early victory for the Government in the Easter District of Virginia). If they prevail, the court has no subject matter jurisdiction so your case would be dismissed. This means that your first goal will be to convince the judge that examination is not a process, it is a well defined event which happened when USCIS interviewed you and that was far more than 120 days ago.

If you are successful with this, there is the other part of the motion: remand. 1447(b) leaves at the judge's discretion to either conduct a hearing and decide the matter or to remand the matter to the Service with appropriate instructions. There is very little chance that the judge will opt for the first choice. The reason for this is that no judge in this country will naturalize you without the completed full criminal background check, which contains (according to USCIS), among others, the name check, which is missing for almost all of the members of this forum. AUSA was right when he told you that there are literally many thousands of applicants with the name check pending. You still can try to argue against the remand and ask the judge that this name check should be produced during the discovery phase of the lawsuit and have a hearing to decide the matter.

Most likely the judge will simply decide the motion without a hearing and order a remand. And here comes, in my opinion, the most critical part of the whole lawsuit: to convince the judge to include in the remand order a well defined timetable. Without this, you will be back to square one, i.e., exactly where you were before your lawsuit.

If AUSA files an answer, the judge most likely will order an initial case management conference and ultimately it will be a hearing on your case.

As a general recommendation: you need to study a lot in order to be prepared to defend your case. The best place to start is the beginning of this forum. Try to read as much as you can (I read every single post, you just need lot of time and lot of patience). Take notes, save the useful info and cases posted as attachements.

Make a PACER subscription and study similar cases first in your district and after that in other jurisdictions.

Read the HANDBOOK FOR LITIGANTS WITHOUT A LAWYER - UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (you can download it from their website. Even if you are in a different district, you can learn a ton from this well written document).

Read you court's Local Rules.

Ask questions on this forum. We are here to help each other. And good luck!
 
Look at recently concluded case on pacer 2:06-cv-13219-AJT-VMM for an opposition to motion to dismiss for I-485

I cannot find the case and I need this opposition for my I485. I was entering this numbers for the Case Number, but it said that it is invalid. Can u give at least Plaintiff name please?
Thank you in advance
 
I'm writing an opposition to the AUSA's motion to dismiss or remand the case. For this purpose, I'd like to quote some known successful cases, especially those in which the district court remanded the case with specific time limits. From an online source, I learned that the following cases are such examples:

(1) Aslam v. USCIS, No. CV 05-985 GAF (C.D. Calif. June 6, 2005) (ordering the Government to complete Plaintiff’s name check in 30 days)

(2) Al Saidi v. Jenifer, (ordering Defendants to adjudicate Plaintiff’s N-400 application in 80 days from the date of the order)

(3) Al-Kudsi v. Gonzales, (ordering Defendant Alberto Gonzales to instruct FBI to complete the name check of the Plaintiff in 90 days from the date of the order and deliver it to the District Director of USCIS)

(4) Mohamed v. Frazier (ordered USCIS to resolve Plaintiff’s N-400 application within 30 days from the date of the order)

(5) Elshorbagi v. Melville, (“Upon remand, defendants are ORDERED to complete any further investigation deemed necessary by defendants in order to satisfy the background check requirements of the naturalization process within NINETY (90) DAYS from the date of this order”)

(6) Khelifa v. Chertoff, (instructing USCIS to promptly determine Plaintiff’s N-400 application in 90 days from the date of the order).

My question is: Where can I get the rulings in these cases? I'd like to learn some details before I can be confident enough to confront the AUSA in the court.

Z.

In principle, you can get these orders from PACER, Westlaw or LEXIS. It will be easier if you look to my postings earlier this month because I posted all of them here on this forum.
 
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